Citation Nr: 21015431 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-25 245 DATE: March 17, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for bilateral tinnitus is granted. FINDINGS OF FACT 1. The weight of the competent and probative evidence is against finding that the Veteran has bilateral hearing loss for VA purposes that manifested in or is otherwise related to his period of active service. 2. The weight of the competent and probative evidence is at least in equipoise as to whether tinnitus manifested in or is otherwise related to the Veteran’s period of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for bilateral tinnitus are met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1985 to October 1989. The matter comes before the Board of Veterans’ Appeals (BOARD) on appeal from a June 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual Board hearing in February 2021. A copy of the hearing transcript is associated with the claims file and has been reviewed. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Certain chronic diseases, including hearing loss and tinnitus, will be considered incurred in service if manifest to a degree of ten percent within one year of service. 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing service connection for the chronic diseases listed in Section 3.309(a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a relationship between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. The Veteran contends that bilateral hearing loss and tinnitus resulted from his exposure to aircraft noise on the flight deck while working as an aviation structural mechanic. See February 2, 2021, Hearing Transcript. 1. Service connection for bilateral hearing loss After review of the record, the criteria for service connection for bilateral hearing loss are not met. In a claim of service connection for impaired hearing, demonstration of the first Shedden element, a current disability, is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In June 2016, a VA audiologist examined the Veteran, and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 5 25 LEFT 15 15 15 25 30 Speech audiometry revealed speech recognition ability of 96 percent bilaterally. June 2, 2016, VA Examination. The Veteran submitted additional audiological testing in January 2021, and puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 10 10 15 LEFT 5 5 10 25 35 Speech recognition scores were not obtained using the Maryland CNC and are not valid for VA purposes pursuant to 38 C.F.R. § 3.385. See January 26, 2021, Medical Treatment Record – Government. The weight of the competent and probative evidence is against finding hearing loss for VA purposes. Audiological testing has not demonstrated auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz of 40 decibels or greater, three frequencies of 26 decibels or greater, or Maryland CNC speech recognition scores of less than 94 percent. Without competent evidence of bilateral hearing loss, the preponderance of the evidence is against the claim and the claim must be denied. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 2. Service connection for bilateral tinnitus After review of the record, the criteria for service connection for tinnitus are met. The June 2016 VA examination contains a competent diagnosis of tinnitus. The first Shedden element of a current disability is met. The Veteran’s military occupational specialty during service was electrical equipment repairman and aircraft trouble shoot assigned to the line division and inspection of aircraft. Noise exposure is conceded. The Veteran reports bilateral, intermittent tinnitus that he first noticed working on the flight deck around aircraft during service. June 2, 2016, VA Examination. The 2016 examiner discounted the Veteran’s lay statement and provided a negative nexus opinion based on lack of hearing loss or significant threshold changes in hearing during service. See id. The competent and probative evidence is at least in equipoise as to whether tinnitus was noted in service with post-service continuity of the same symptomatology. As a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection may be based on continuity of symptomatology. Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Any doubt on the material issue of a relationship between the present disability and the post-service symptomatology is resolved in the Veteran’s favor, and the claim of service connection for tinnitus is granted. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (stating that the primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the “nexus” requirement of the three-element test, (Continued on next page) whereas the former benefits from presumptive service connection (absent intercurrent causes) or service connection via continuity of symptomatology). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.